Costa Mesa to Study Revised Art Funding Restrictions

The city attorney has drafted proposals for consideration Monday by the City Council that would prevent arts groups from using city money for “obscene matters” or “for the conduct of any religious or political activity.”

The language rejects broader restrictions recommended recently by a city resident, but the obscenity clause has renewed concerns expressed by the American Civil Liberties Union.

City Atty. Thomas Kathe said that under the draft agreement, obscenity would be defined in accordance with the California Penal Code and that violations would be determined by the courts, not the city.

But while that is spelled out in Kathe’s written report, a spokeswoman for the ACLU of Southern California said the agreement itself is not clear.

Orange County ACLU counsel Rebecca Jurado is also worried about another proposed clause that would deny future money to any grantee who fails to comply with the agreement.

“Each individual application should be judged on its own merits,” said Jurado, who pledged to bring her concerns before the council Monday.

Kathe argued that the draft language does not amount to prior restraint and is meant to protect Costa Mesa from the use of city money to break state laws. If a grantee is prosecuted for obscenity on a project paid for with city money, the new policies would allow Costa Mesa to terminate the grant and recover the money.

Michael Hudson, vice president and general counsel for the organization People for the American Way, questioned the need to repeat state obscenity law in the proposed agreement and said it could have “something of a chilling effect” on applicants.

Language regarding political and religious activity is consistent with the California Political Reform Act’s prohibition of the use of public money for political campaigns and the state Constitution’s prohibition against using government money to promote religious activity, according to a report signed by Kathe. Jurado expressed no objection to the clause.

The city attorney’s office was directed by the council at its last meeting to draft a new agreement on cultural grants and was asked by Mayor Peter F. Buffa to use as a model Costa Mesa resident John Feeney’s proposal that grant recipients promise “to neither visually nor verbally, deliberately denigrate anyone’s race, religion, color, national origin, ancestry, physical handicap, marital status, sex or age.”

Kathe’s report, made public Friday, called the Feeney language “too vague” and said it “invites unbridled subjective discretion on the part of the city to determine whether to approve the grant based on the content of the art material.

“This type of prior restraint or censorship,” the report continued, “has been repeatedly held unconstitutional by the United States Supreme Court.”

Feeney, reached at his home Friday, said he had not seen the proposed agreement and declined to comment.

The brouhaha started when the city, acting on a complaint by Feeney, delayed distribution of $175,000 in cultural arts grants while it investigated whether South Coast Repertory used any city funds in printing and distributing flyers supporting the NEA. Such spending would put the city in the position of endorsing a political activity, according to Buffa.

The money, including $30,000 for SCR, was eventually released when the troupe assured the city that no public money had been used for the flyer.